Craig v South Australia
High Court of Australia · 1995
Craig v South Australia (1995) 184 CLR 163
Getting the law wrong and acting outside your power are not the same thing. Where does one become the other?
Kirk makes the distinction between jurisdictional and non-jurisdictional error constitutionally significant for State courts, but it does not make jurisdictional error the whole of judicial review. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [100]: "Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power." So review for non-jurisdictional error survives as a category and can be removed by statute; what cannot be removed is review for jurisdictional error. Kirk also treats Craig's list as a guide rather than a closed taxonomy.
An error of the Craig kind is not jurisdictional simply because it happened. Kiefel CJ, Gageler and Keane JJ hold that a statute imposing a condition on a decision-making process "is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance" ([29]), and that the threshold "would not ordinarily be met ... if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made" ([30]). Jurisdictional error accordingly "consists of a material breach of an express or implied condition of the valid exercise of a decision-making power" ([31]). Naming a Craig category is therefore only half the argument; the other half is that compliance could have produced a different decision.
What happened?
Craig was charged by information in the District Court of South Australia with larceny of a motor car, receiving it knowing it to be stolen (charged in the alternative), and damaging it by fire. He applied for a stay until he could be provided with counsel at public expense. Russell DCJ found he lacked the means to obtain representation and "could not receive a fair trial unless he is properly represented by counsel", and held that Dietrich required the trial to be "adjourned, postponed or stayed until legal representation (was) available". He stayed the proceedings until further order.
The State applied to the Full Court of the Supreme Court under r 98 of the Supreme Court Rules 1987 (SA). The Full Court, Olsson J dissenting, made an order in the nature of certiorari quashing the stay. Special leave to appeal was granted, limited to "the question of jurisdictional error and error of law on the face of the record".
The High Court assumed, without deciding, that the District Court was an inferior court for these purposes. The question then was whether the error the Full Court had found was of a kind that certiorari could reach.
What did the Court decide?
The appeal was allowed, the Full Court's order set aside, and the State's judicial review application dismissed. There was no ground on which certiorari could properly issue: the error was not jurisdictional, and it was not error on the face of the record, because the record did not include the transcript or the reasons.
Getting there required the Court to say when an error of law puts a decision outside power. Their Honours drew a "critical distinction ... between administrative tribunals and courts of law" ([13]). An administrative tribunal, absent contrary statutory intent, "lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law" ([14]). A court of law is different: deciding questions of law, identifying the issues and formulating the questions "are all routine steps in the discharge of that ordinary jurisdiction" ([15]).
Proposition
What is the principle?
Jurisdictional error is not a single fixed category but is illustrated by recurring examples — identifying a wrong issue, asking a wrong question, ignoring relevant material, relying on irrelevant material, and misunderstanding the extent of the power conferred. The first four are addressed to administrative tribunals, which ordinarily lack authority to determine questions of law authoritatively; where an inferior court makes mistakes of that kind in a matter entrusted to it, that will not ordinarily be jurisdictional error. Misconstruing the empowering instrument and thereby misconceiving the nature of the function or the extent of the power is jurisdictional error for an inferior court as well.
Their Honours' words, on tribunals ([14]): "[i]f such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers." On courts ([15]): "[s]uch a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error."
But the line is not drawn around courts altogether. Earlier, at [12], their Honours list ways an inferior court does fall into jurisdictional error, and the last is the one to remember: "an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case". Their Honours add the warning that goes with it — in that category "the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern".
Why does this case matter?
Because the list is the most quoted and the most misused passage in Australian administrative law. It reads like a checklist of things that make a decision invalid, and students apply it that way — to courts as readily as to tribunals, and without asking whether the error could have changed anything. Neither move survives contact with the authorities: this judgment draws a line the list sits on one side of, and later cases have added a materiality threshold on top.
Notice too how little of the case was about the list. Craig won because the record did not include the transcript or the reasons, so even an error of law on the judge's part was not error "on the face of the record". The scope of the record is doing as much work in the outcome as the doctrine the case is remembered for — a reminder that in judicial review the remedy's own conditions can decide a case before the merits of the error are reached.
Exam and application relevance
Ask first what kind of body you are reviewing. For a tribunal, the wrong-issue and wrong-question categories are available. For an inferior court exercising authority entrusted to it, a mistake of that shape ordinarily is not jurisdictional error — but do not stop there, because if the court misconstrued its empowering instrument and so misconceived its function or the extent of its power, that is jurisdictional error for a court too. Say which of the two you are alleging.
Then name the category and prove it from the statute. "The decision-maker asked the wrong question" means nothing until you have said what question the empowering provision required, and shown from the reasons that a different one was asked.
Then deal with materiality. After Hossain, a breach is ordinarily not jurisdictional unless compliance could have produced a different decision — so say what the decision-maker would have had to consider, and why it might have changed the outcome. An answer that stops at naming the category has done two-thirds of the work.
Check your understanding
Two decision-makers each misread the same statutory phrase. Name two reasons why that might be jurisdictional error for one and not the other.